Hearing: JOYCE JUELCH, ET AL VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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GEORGE D, YARON, ESQ, (State Bar #96246)

een Et PATTERSON, ESQ, (State Bar = ELECTRONICALL

. IG, ESQ. (State Bar #260852,
YARON & ASSOCIATES FILED]
601 California Street, 21" Floor Superior Court of Califortia,
San Francisco, California 94108 County of San Francisc
Telephone: (415) 658-2929 FEB 26 2010
Facsimile: (415) 658-2930 Clerk of the Court

BY: CHRISTLE ARRIO!

Attorneys for Defendant Deputy Clerk
84 LUMBER COMPANY

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

JOYCE JUELCH and NORMAN JUELCH, SR.,) CASE NO, CGC-09-275212

NOTICE OF MOTION BY 84 LUMBER

2
Plaintiffs, )
) COMPANY FOR SUMMARY
v. ) JUDGMENT, OR, IN THE
; ALTERNATIVE, SUMMARY
ASBESTOS DEFENDANTS (BP) As ADJUDICATION OF ISSUES
Reflected on Exhibits B, B-1, C; and DOES 1-)
8500, and SEE ATTACHED LIST, )
Hearing Date: March 18, 2010
Hearing Time: 9:30 a.m.
Defendants. Depart. No.: 220
} Hearing Judge: Hon. Harold BE. Kahn
) Date Action Filed: | May 20, 2009

) Date Set For Trial: ~~ April 5, 2010

TO EACH PARTY AND THEIR ATTORNEY OF RECORD:

YOU ARE HEREBY NOTIFIED THAT on March 18, 2010, at 9:30 a.m., in Department
220 of the San Francisco County Superior Court, located at 400 McAllister Street, San Francisco,

California, 94102, before the Honorable Harold E. Kahn, Defendant 84 Lumber Company (“84
Lumber”) will move this Court as follows:'

For summary judgment, or, in the alternative, summary adjudication of issues, in favor of

‘on J january 5, 2010, the Honorable James J. McBride issued an Order Granting Plaintiffs’ Motion for
Preference and Extending Discovery Cut-Off. In the Order, the Court allowed for Motions for Summary Judgment
‘© “be served upon fifteen days notice to and including fifteen days before trial. The summary judgment motions
must be served no later than fifteen days prior to the hearing date by hand or Lexis Nexis e-serve.”

lotice of Motion for Summary Judgmenv/Adjudication -1- GN3265\MSNNotice.wpd84 Lumber against Plaintiffs Joyce Juelch (“Mrs. Juelch”) and Norman Juelch, Sr., (collectively
“Plaintiffs”) and for costs of suit incurred herein, and such other relief as may be just.

Said Motion will be made upon the grounds that there are no triable issues of material fact
as to Plaintiffs’ cause of action for strict products liability, because: (1) 84 Lumber did not operate
a store in Stockton, California prior to June of 1976, so Mrs. Juelch could not have been exposed
to any defective products allegedly sold by 84 Lumber prior to June of 1976; (2) Plaintiffs cannot
recover against 84 Lumber under a theory of strict products liability, because Plaintiffs have no
evidence that Mrs. Juelch worked with any defective products sold by 84 Lumber after June of
1976; and (3) Plaintiffs have no evidence establishing that any of Mrs. Juelch’s alleged asbestos-
related injuries were caused by a defect in any product allegedly sold by 84 Lumber.

Said Motion will also be made upon the grounds that there are no triable issues of material
fact as to Plaintiffs’ cause of action for negligence, because: (1) Plaintiffs have no evidence that an
alleged duty, were one to exist, was breached by 84 Lumber, because the alleged products
purchased by Mrs, Juelch and/or her ex-husband, John Chambers, for use in building their house
at 251 Adelbert in Stockton, CA, around 1978, did not contain asbestos; and (2) even if 84 Lumber
owed Mrs. Juelch a duty of care, and Plaintiffs provided evidence of a breach of this duty, Plaintiffs
have no evidence that 84 Lumber’s conduct was a substantial factor in causing Mrs. Juelch’s alleged
asbestos-related injury.

Said Motion will also be made upon the grounds that there are no triable issues of material
fact as to Plaintiffs’ cause of action for false representation, because: (1) Plaintiffs have no evidence
identifying any product(s), sold by 84 Lumber, about which 84 Lumber made misrepresentations
of material fact to the public at large, in regards to the product(s)’ character or quality; and
(2)Plaintiffs have no evidence indicating that Mrs. Juelch justifiably relied on any alleged
representation made by 84 Lumber.

Lastly, said Motion will also be made upon the ground that there are no triable issues of
material fact as to Plaintiff Norman Julech, Sr.’s cause of action for loss of consortium, because,
where an injured person has no valid cause of action against a Defendant, the family of that person

has no cause of action for loss of consortium.

latice of Motion for Summary Judgment/Adjudication -2. GAI26S\MSINNotice. wpdm DGC OY DW BF Wwe

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In the alternative, if, for any reason, summary judgment is not granted, 84 Lumber seeks
separate adjudication of each of Plaintiffs’ causes of action alleged against 84 Lumber on the
grounds that: (1) 84 Lumber is entitled to summary adjudication of the products liability cause of
action because Plaintiffs have no evidence that Mrs. Juelch worked with or around any defective
product sold by 84 Lumber which caused her alleged asbestos-related injuries; (2) 84 Lumber is
entitled to summary adjudication of the negligence cause of action, because Plaintiffs have no
evidence that Mrs. Juelch worked with or around any product sold by 84 Lumber which caused her
alleged asbestos-related injuries; (3) 84 Lumber is entitled to summary adjudication of the false
representation cause of action, because Plaintiffs have no evidence identifying any product(s), sold
by 84 Lumber, about which 84 Lumber made misrepresentations of material fact to the public at
large, in regards to the product(s)’ character or quality,

The Motion will be based upon this Notice, the Memorandum of Points and Authorities, the
attached Separate Statement of Undisputed Material Facts, the Declaration of Michael J. Peng, the
Affidavit of Frank Cicero, the Request for Judicial Notice, and all exhibits which are attached
thereto and served and filed herewith, the complete pleadings and records on file, and such other
evidence and/or oral argument as may be presented to the Court at or before the hearing on this
Motion.

DATED: February 24, 2010 YARON & ASSOCIATES

A’

J
Attorneys for Defendant
84 LUMBER COMPANY

lotice of Motion for Summary Judgment/Adjudication -3- GA3265\MSWNotice.wpdPROOF OF SERVICE
Tam over 18 years of age and not a party to the within action. 1 am employed in the County

of San Francisco; my business address is Yaron & Associates, 601 California Street, 21st Floor, San
Francisco, California 94108-2826.

On February 26, 2010, at or about, 2:15 pm, I served the within:

NOTICE OF MOTION BY 84 LUMBER COMPANY FOR SUMMARY
JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF
ISSUES

addressed to:

All Parties As Listed on the LexisNexis Service List

VIA E-MAIL OR ELECTRONIC TRANSMISSION. Based on a court order or

an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents
to be sent to the persons at the e-mail addresses listed above. I did not receive, within a reasonable time
after the transmission, any electronic message oy other indication that the transmission was unsuccessful.

Ideclare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct, and that this declaration was executed on February 26, 2010, at San Francisco,
California.

MARISELA H. NAVARRO
MNAVARRO@YARONLAW.COM